Doud v. Guthrie

• Decision Date: 31 October 1883
• Citation: 13 Bradw. 653,13 Ill.App. 653
• Parties: PATRICK DOUDv.OSSIAN GUTHRIE ET AL.
• Court: United States Appellate Court of Illinois

13 Ill.App. 653

13 Bradw. 653

PATRICK DOUD

v.OSSIAN GUTHRIE ET AL.

Appellate Court of Illinois, First District.

October Term, 1883.

OPINION TEXT STARTS HERE

ERROR to the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed November 16, 1883.

This was case, brought by plaintiff in error against defendants in error, to recover damages alleged to have been caused to plaintiff's land by the erection of dams and dikes across and along the Desplaines river near plaintiff's land, whereby the natural flow of water was obstructed and caused to overflow plaintiff's land.

The case was before this court at the March term, 1882, when a former judgment for defendants was reversed for certain erroneous instructions, and the cause was remanded: 11 Bradwell, 194. Upon a second trial verdict and judgment again went for the defendants and the plaintiff brings the case here for review.

It appears from the bill of exceptions that after the plaintiff had introduced evidence tending to prove a cause of action, as alleged in his declaration, and during the progress of the trial, the court, without previous consultation with the plaintiff or his counsel, announced to the jury, parties and counsel, that the court would send the jury to the locality in question to view the premises if both or either of the parties would pay the expenses of the trip, including transportation and refreshments. That plaintiff's counsel excepted to such announcement; that defendants' counsel then stated that defendants would pay all of said expenses, and thereupon in the hearing and sight of the jury, one of the defendants handed to one of the bailiffs of the court a sum of money to be used in paying such expenses; that plaintiff's counsel was then asked whether his client would contribute thereto, which he refused to do, and protested against and excepted to such proceedings, and to the proposed view by the jury.

It further appears that among other witnesses, plaintiff called Frank Douglass, who testified that he had been engaged for twenty-five years in the business of mechanical engineering; that he was acquainted with hydraulics and hydrostatics, and the application of these principles to practice; that he had visited the locality in question, examined the dams and dikes and the new and old channels of the Desplaines river; had taken measurements of the capacity of the new and old channels, the fall of the river between certain points, the height of the dams, and had observed the general lay of the land and the flow of the river at that locality. Plaintiff's counsel then asked him the following question: “In your opinion, what effect, if any, do the dams, dikes and new channels constructed by the defendants have upon the water of the Desplaines river, and what effect, if any, upon plaintiff's land?” The court sustained the defendant's objection to said question, and refused to allow the same to be answered, to which ruling the plaintiff excepted.

Among other instructions given by the court at the instance of the defendants, was one to the effect that the owner of land has a right to use the same in any manner he may desire, and to build embankments upon, dig ditches in and through the same, and to change the natural flow of water through or upon the same, by erecting dams and digging ditches, or in any other manner, so long as he does not thereby cause injury or damage to his neighbor; to the giving of which plaintiff excepted.

A verdict having passed for the defendants, the plaintiff entered his motion for a new trial, in support of which an agreed state of facts was submitted to and considered by the court, which set forth, in substance, that the jury during the progress of the trial visited the locality of the dikes and dams, twelve miles from the court-house; that their railroad fares were paid by the bailiff sent with them by the court, out of money furnished by the defendants in the presence of the court before they started; that they were driven from the station at Summit to the dikes, where they entered defendants' boats, and were rowed by defendants' men to a point near defendants' ice pond; that they did not go upon plaintiff's land, nor upon his side of the river; that they were afterward driven in conveyances furnished by the defendants to the hotel of Dennis O'Brien, one of the defendants' witnesses on the trial, where they were treated to beer before dinner and to cigars after dinner, all paid for out of the money furnished to the bailiff by said defendants; that all this was done without the consent of the plaintiff or his counsel, and against his protest and exception.

The plaintiff's motion for a new trial having been overruled, he appealed to this court, and assigns for errors:

First. Permitting the jury to visit the locality in question.

Second. Misconduct of the jury.

Third. The giving of defendants' instructions.

Fourth. Rejecting evidence offered by plaintiff.

Fifth. Overruling plaintiff's motion for a new trial.

Mr. F. W. BECKER, for plaintiff in error; that at common law, a view was grantable only in cases when the question of title arose, cited Kempsted v. Deacon, 2 Salk. 665, S. C.; 1 Lord Raymond, 76.

This is not a real, but personal action: Stout v. McAdams, 2 Scam. 67.

As to ordering a view: Stampofski v. Steffins, 79 Ill. 303.

As to guarding the jury against improper influences: Lyons v. Lawrence, 12 Bradwell, 531; Sacramento v. Showers, 6 Nev. 291.

The diversion of a water-course will sustain an action, although no actual damage accrue: Plumleigh v. Dawson, 1 Gilm. 544.

As to expert testimony: Linn v. Sigsbee, 67 Ill. 75; Buffum v. Harris, 5 R. I. 243; Porter v. Pequonnoc M'f'g Co. 17 Conn. 249.

Mr. A. B. JENKS, for defendants in error; that a plan, map or picture of the locality can be properly presented to the view of the jury, cited Greenleaf on Ev. § 285; Wharton on Ev. §§ 676, 677; Smith v. Story, 14 Pick. 128; Hazen v. B. & M. R. R. Co. 2 Gray, 574; Ruloff v. The People, 45 N. Y. 213; Blair v. Pelham, 118 Mass. 420; Marcy v. Barnes, 16 Gray, 161; Hollenbeck v. Rowley, 8 Allen, 473; Cozzens v. Higgins, 1 Abbott, N. Y. 451; Underzook v. Commonwealth, 76 Penn. St. 340; Church v. Milwaukee, 31 Wis. 512; Commonwealth v. Coe, 115 Mass. 481, 505; Walker v. Curtis, 116 Mass. 98.

As to a view in condemnation proceedings: Wells on Em. Domain, § 254; R. S. Ch. 47, § 9.

As to the right of a judge to order a view: 1 Burrow's Report, 253; Tidd's Pr. § 796; Snow v. B. & M. R. R. Co. 65 Me. 230.

Instructions should be considered together: N. L. P. Co. v. Binninger, 70 Ill. 571; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 309.

The opinions of witnesses should not be received as evidence where all the facts on which such opinions are founded can be ascertained and made intelligible to the court or jury, nor where the inquiry is into a subject-matter, the nature of which does not require any peculiar habits or study or scientific knowledge to understand it: The City of Rockford v. Hildebrand, 61 Ill. 155; Linn v. Sigsbee, 67 Ill. 75; T. P. & W. R. R. Co. v. Conroy, 68 Ill. 560; City of Chicago v. McGiven, 78 Ill. 347; Muldowny v. I. C. R. R. Co. 36 Iowa, 462; Milwaukee, etc., R. R. Co. v. Kellogg, 94 U. S. 469.

WILSON, J.

We might well content ourselves by reversing the judgment of the court below, solely by reason of the occurrences which took place in connection with the expedition of the jury to view the premises in question; for certainly if a greater travesty on the trial by jury ever occurred it has not come to our notice. Upon the announcement by the court that the jury would be sent to make the view, if both or either of the parties would pay the expenses, and the refusal of the plaintiff to pay any portion of the same accompanied with his protest against the proposed view, the counsel for the defendants stated in the presence and hearing of the jury that the defendants would pay all the expenses of the trip. This the jury might have regarded as tantamount to saying: If the plaintiff is afraid to have the jury inspect the premises, and thus have the evidence of their own senses in judging of the merits of the plaintiff's claim, the defendants are not, but on the contrary are willing to bear the entire expense of an inspection, thus at the very inception of the proceeding, creating a bias in the minds of the jury against the plaintiff.

Twelve miles by rail the following morning to Summit, thence by the defendants' conveyances to the river, where, embarking in the defendants' boats, they were rowed down the stream by the defendants' men, wholly avoiding the plaintiff's premises, for by the agreed facts they did not go upon the plaintiff's land, nor visit his side of the river. After reaching the lower dam they were conveyed to a hotel kept by one of the defendants' witnesses, where they were treated to a dinner, including beer and cigars, and were subsequently returned to the city. All this was done and all expenses paid with money furnished, to the knowledge of the jury, by the defendants for the purpose.

The bare statement of the facts furnishes its own commentary. A trial attended with such concomitants was worse than a farce, and to suffer a verdict obtained under such circumstances to stand, would be a reproach to the administration of the law. In the very nature of things, the entertainment, taken altogether, could hardly have failed to have established the entente cordiale between the jury and the defendants, and disqualified them from rendering an impartial verdict

This court said in Lyons v. Lawrence, 12 Bradwell, 533, “The conduct of appellee in producing in court and offering to the jury refreshments, was improper and reprehensible, and would alone have justified the court in setting aside the verdict. Too much care and precaution can not be used in guarding the jury against improper influences, and preserving the purity of jury trials. Great strictness in this regard is needful in...